§ Mr. Ferrand
hoped that the House would extend its indulgence for a few minutes while he made one or two observations as to a question which he put on Monday evening to the right hon. Baronet the Secretary for the Home Department, as to the separation of children in workhouses, under a certain age, from their mothers. He then commenced his question with the declaration—"That as Lord Chief-justice Denman had declared it to be the unanimous opinion of the judges of the Court of Queen's Bench, 'that there are some cases in which it is necessary to break in upon an Act of Parliament, and upon that which may have existed from all time;' and has also de-dared that 'it is the mother who is the proper party to have the custody of all her children under seven years of age, and that it is not for the benefit of the mother, but for the protection of the children.'" 788 He had taken considerable pains in drawing up this question; he had since referred to his authority, and been informed that he was perfectly correct in the statement which he had made. He had also referred to the reports of the case to which he adverted, in the Morning Chronicle, the Times, the Morning Herald, and the Morning Post, as they appeared in these papers the morning after judgment was delivered, and he found that they all nearly coincided. He hoped that he had said sufficient to convince the House that before he placed his question on the notice paper he had exercised sufficient caution, and was therefore justified in doing so. He now wished to ask the right hon. Baronet whether he still denied that Lord Chief Justice Denman had used these words; and he also wished to ask whether he still continued to deny the correctness of the other words in the notice paper?
§ Sir J. Graham
having received no previous notice of the hon. Member's intention to ask this question, had not brought down with him an authorised report of Lord Chief Justice Denman's judgment in the case alluded to by the hon. Member. He was very far from imputing any motives to the hon. Member when he formerly answered his question, and he then stated that he believed that the hon. Member had used every caution to get correct information on the point, but notwithstanding this, the hon. Member had been mistaken. The hon. Member now stated that he found that the information which had been communicated to him, and on which he had founded his question, was confirmed on searching in the papers of the following morning, and that all the reports of the judgment in question substantially concurred; and this, he conceived, was a test of the accuracy of the words used. Now, at the same time, he (Sir James Graham) had it from the very highest source, that not only were those words not used, but words the very converse of them. The words quoted from the morning newspapers by the hon. Gentleman were, "That there are some cases in which it is necessary to break in upon an Act of Parliament, and upon that which may have existed from all time." Now the words used by Lord Denman were, "That although it was the general rule to adhere to established principles, yet cases have arisen, when, in order to give effect to the express words of an Act of 789 Parliament, it has been necessary to break in upon established principles." The learned judge also laid it down, that although, as a general rule, the mother might have the care of her child, yet cases might arise where policy would require a departure from it, and these had been provided for by Act of Parliament. The learned judge then observed that this was a case of the kind. The words, then, as quoted by the hon. Member from the various reports, were not correct as to the great principle which the hon. Gentleman said that the learned judge had put forward. Indeed, such an opinion would be most monstrous as coming from the Lord Chief Justice of England, that he thought that in certain cases it would be right to break through the words of Acts of Parliament. He, therefore, was enabled distinctly to state that not only what he had just observed was confirmed in the authorised reports, namely, the Jurist and Law Journal, in which the case was accurately reported, but that if more was wanted, he had the highest judicial authority for the assertion he now made.